TMI Blog2012 (3) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1. This appeal has been preferred against the impugned judgment and order dated 18.6.2009 passed by the High Court of Bombay in Writ Petition No. 4665 of 2009 by which the High Court has affirmed and upheld the judgment of the Hon ble Chief Minister of Maharashtra declaring that the conduct of the appellant was unbecoming of the President of Uran Municipal Council and declared him to be disqualified for remaining tenure of municipal councilorship under Section 55B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter called as the `Act 1965) and further declared him disqualified for a period of six years from the date of the order i.e. 21.3.2009. 2. Facts and circumstances giving rise to this appeal are: A. That the appellant was elected as member of Uran Municipal Council and, subsequently, elected as a President of the Municipal Council. The appellant was served with a show cause notice dated 3.12.2008 by the State of Maharashtra calling upon him to explain why action under Section 55B of the Act 1965 be not taken against him. The chargesheet contained the following six charges: Charge No.1 Uran Charitable Medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arashtra Municipal Councils, Panchayat Samiti and Industrial Township Act, 1965. Charge No.4 In the meeting held on 9.1.2007, the suggestion to the Agenda No.4 made by Members Shri Chintaman Gharat and Shri Shekhar Mhatre that a rented car be provided for the use of the President was rejected by you. Similarly, the Members Shri Chintaman Gharat and Shri Shekhar Mhatrehad made suggestion to the Agenda No.ll of the same meeting that new Nalla be constructed near Ughadi at Bhavara Phanaswadi. The said suggestion was rejected after being read over. Similarly, Members Shri Chintaman Gharat and Shri Shekhar Mhatre had made suggestion to the Agenda No.20 in the same meeting that new Nalla be constructed in front of the house of Shri Kailash Patail at Bhavara Phanaswadi. The said suggestion was rejected. Similarly, suggestion was made by Shri Chintaman Gharat and Shri Shekhar Mhatre to Agenda No.23 that the Standing Committee be authorized to open the tender/approvals and give sanctions for diverse works of the Municipal Council. The said suggestion was rejected. Similarly, suggestion was made by Shri Chintaman Gharat and Shri Shekhar Mhatre to Agenda No. 27 of the same meeting reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CI Pipeline of 300 mm. diameter for outlet and inlet of GSR Tank at Sarvodayawadi within Uran Municipal Council by the construction department of Maharashtra Jeevan Pradhikaran, Panvel by its Outward No.MJPBV/MC/MS/Uran /311/3/06 dated 7.12.2006 at the Town Hall of the Uran Municipal Council. Pursuant to the same three tenders were invited, details whereof are as follows: Name Address of the Contractor Tender Amount 1. M/s Shailesh Construction Ulhasnagar 4,21,165.00 2. M/s Padmavati Enterprise, Ambernath 4,18,889.28 3. M/s Kiran B. Jadhav, Ulhasnagar 3,78,507.78 Out of the aforesaid three tenders, the lowest tender of M/s Kiran B. Jadhav, Ulhasnagar was accepted as per Clause 171 of the Maharashtra Accounts Code, 1971. However, the estimate was prepared as per the DSR of 2005-2006. As a result when the tenders were invited, there was a difference of more than 10% in the tender amount. Therefore, by citing Item No.44 of the Standing Order No.36 of the Commissioner and Director, Directorate of Municipal Administration, the Municipal Council called for the current market rates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount. The explanation was furnished by the appellant that there was a resolution by the council itself accepting the said tenders and, therefore, the appellant exclusively could not be held responsible for acceptance of tenders on the high rate of CI pipes. Even the rate of C.I. pipe purchased by Maharashtra Jivan Pradhikaran were also considered and after considering all these factors, the lowest bid was accepted by the Uran Municipal Council. The Chief Officer, the Junior Engineer has also considered the technical aspect, and, then the recommendation was forwarded under the signature of President, Chief Officer and Jr. Engineer and thereafter, the Municipal Council passed resolution and accepted the said tender. Therefore, it cannot be said that by doing this the appellant has breached any of the statutory provisions. 5. It is further submitted that at the time of hearing on 21.3.2009, the complainant wanted to rely upon some new grounds, and, therefore, the appellant raised the objection. The Hon ble Chief Minister directed the Secretary to fix up a date of hearing, however, no date of hearing was fixed and impugned order dated 21.3.2009 had been passed without affording any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct thus: The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected. Thus it could be seen that the word miscond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the terms occurs, having regard to the scope of the statute and the public purpose it seeks to serve. A similar view has been reiterated in Baldev Singh Gandhi v. State of Punjab Ors., AIR 2002 SC 1124. 12. Conclusions about the absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment. (See: Union of India Ors. v. J. Ahmed, AIR 1979 SC 1022). 13. It is also a settled legal proposition that misconduct must necessarily be measured in terms of the nature of the misconduct and the court must examine as to whether misconduct has been detrimental to the public interest. (Vide: General Manager, Appellate Authority, Bank of India Anr. v. Mohd. Nizamuddin AIR 2006 SC 3290). 14. The expression misconduct has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, wilful in character. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resorting to manipulations to achieve ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the Institution. The democratic set-up of the country has always been recognized as a basic feature of the Constitution, like other features e.g. Supremacy of the Constitution, Rule of law, Principle of separation of powers, Power of judicial review under Articles 32, 226 and 227 of the Constitution etc. (Vide: His Holiness Keshwananda Bharti Sripadagalvaru Ors. v. State of Kerala Anr., AIR 1973 SC 1461; Minerva Mills Ltd. Ors. v. Union of India Ors., AIR 1980 SC 1789; Union of India v. Association for Democratic Reforms Anr., AIR 2002 SC 2112; Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter), AIR 2003 SC 87; and Kuldip Nayar v. Union of India Ors., AIR 2006 SC 3127). 18. It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive on its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative acts or is supposed to act as a live link between the people and the Government. The people s representatives fill the role of law-makers and custodians of the Government. People look to them for ventilation and redressal of their grievances. 21. In State of Punjab v. Baldev Singh etc. etc., AIR 1999 SC 2378, this Court considered the issue of removal of an elected office bearer and held that where the statutory provision has a very serious repercussions, it implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the statutory provisions. All the safeguards and protections provided under the statute have to be kept in mind while exercising such a power. The Court considering its earlier judgments in Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655; and Ali Mustafa Abdul Rehman Moosa v. State of Kerala, AIR 1995 SC 244, held as under: It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. 22. The Constitution Bench of this Court in G. Sadanandan v. State of Kerala Anr., AIR 1966 SC 1925, held that if all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice, discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. His removal may curtail the term of the office bearer and also cast stigma upon him. Therefore, the procedure prescribed under a statute for removal must be strictly adhered to and unless a clear case is made out, there can be no justification for his removal. While taking the decision, the authority should not be guided by any other extraneous consideration or should not come under any political pressure. 26. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office bearer sought to be removed. 27. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e you ever so high, the laws are above you. This is what a man in power must remember always. 30. In L.I.C. of India Anr. v. Consumer Education and Research Centre Ors., AIR 1995 SC 1811, this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India v. M.L. Capoor Ors., AIR 1974 SC 87; and Mahesh Chandra v. Regional Manager, U.P. Financial Corporation Ors., AIR 1993 SC 935. 31. In State of West Bengal v. Atul Krishna Shaw Anr., AIR 1990 SC 2205, this Court observed that giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. 32. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. 35. In Institute of Chartered Accountants of India v. L.K Ratna Ors., AIR 1987 SC 71, this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under S. 22 A of the Act. The exercise his right of appeal effectively he must know the basis on which the Council has foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry Anr. v. V. Ramakrishnan Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania Ors., AIR 2010 SC 3745). 38. Section 55 of the Act 1965 provides for removal of the President of the Council by No Confidence Motion. Sections 55A and 55B provide a mode of removal of duly elected President on proved misconduct or negligence etc., which read as under: Section 55A.- Removal of President and Vice-President by Government:- Without prejudice to the provisions of Section 55-1A and 55, a President or a Vice-President may be removed from office by the State Government for misconduct in the discharge of his duties, or for neglect of or incapacity to perform, his duties or for being guilty of any disgraceful conduct, and the President or Vice-President so removed shall not be eligible for re-election or re-appointment as President or Vice-President as the case may be, during the remainder of the term of office of the Councillors: Provided that, no such President or Vice-President shall be removed from office, unless he has been given a reasonable opportunity to furnish an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion with the Chief Officer: (2) The President may, whenever he thinks fit, and shall upon the written request of not less than one-fourth of the total number of Councillors and on a date not later than fifteen days after the receipt of such request by the President, call a special meeting. The business to be transacted at any such meeting shall also be restricted to matters specified in clause (1). (3) If the President fails to call a meeting within the period specified in clause (2), the Councillors who had made a request for the special meeting being called, may request the Collector to call a special meeting. On receipt of such request, the Collector, or any officer whom he may designate in this behalf, shall call the special meeting on a date within fifteen days from the date of receipt of such request by the Collector. Such meeting shall be presided over by the Collector or the Officer designated, but he shall have no right to vote. 40. The instant case requires to be examined in the light of aforesaid settled legal propositions and the statutory provisions. 41. The case has initially originated because of the complaint filed by Shri Chintaman Raghunath Gharat, Ex-Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce has been made to Standing Order 36 issued by the Director and Commissioner, Directorate of Municipal Administration, providing for the procedure for inviting tenders and then straightaway without giving any reason, finding is recorded as under: Out of the 3 tenders received for installation of 300 mm diameter pipeline for outlet and inlet of GSR tank at Sarvodayawadi and Town Hall of Uran Municipal Council, lowest tender is accepted as per clause 171 of the Maharashtra Municipal Council Accounts Code, 1971. However, the tenders were invited as per the DSR rates for the year 2005-2006. The lowest tender received at that time and was more than 10% of the rates of the estimate (approximately 31% and 37%). Despite this, the said tender was accepted. Then, a very cryptic order of punishment has been passed. 42. The explanation furnished by the appellant for not holding the meeting and acceptance of tender by the council itself and not by the appellant, has not been considered at all. No reasoning has been given by the Statutory Authority for reaching the conclusions. We fail to understand as on what basis such a cryptic order imposing such a severe punishment can be sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Uttar Pradesh Ors., AIR 1976 SC 2602; Ghulam Qadir v. Special Tribunal Ors., (2002) 1 SCC 33; and Kabushiki Kaisha Toshiba v. Tosiba Appliances Company Ors., (2008) 10 SCC 766). The High Court failed to appreciate that it was a case of political rivalry. The case of the appellant has not been considered in correct perspective at all. 45. In such a fact-situation, the complaint filed by the respondent No. 5 could at the most be pressed into service as a material exhibit in order to collect the evidence to find out the truth. In the instant case, as all the charges proved against the appellant have been dealt with exclusively on the basis of documentary evidence, there is nothing on record by which the complainant could show that the General Body meeting was not called, as statutorily required, by the appellant intentionally. 46. Not calling the meeting of the General Body of the House may be merely a technical misconduct committed inadvertently in ignorance of statutory requirements. It is nobody s case that the appellant had done it intentionally/purposely in order to avoid some unpleasant resolution/demand of the council. No finding of fact has been recorded eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stretch of imagination it cannot be held to be an individual decision of the appellant and the competent authority failed to appreciate that the tenders were accepted by the Council itself and not by the appellant alone. Therefore, he could not be held responsible for acceptance of tenders. We have gone through the counter affidavit filed by respondent No.5, complainant before this court and he has not stated anywhere that the tenders were not accepted by the council, rather allegations have been made that the tenders had been accepted at a higher rate so that the contractor could get the financial gain. Similarly, technical issue has been raised for not calling the meeting, committing serious irregularities sufficiently warranting dis-qualification of the appellant on his omission to call the meeting, but it is not his case that he did it intentionally. The counter affidavit filed by the State does not reveal anything in relation to the issues involved herein and it appears that the deponent/officer has merely completed the formalities without any purpose. 48. To conclude, we are of the considered opinion and that too after appreciation of the entire evidence on record that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the judgment vide order dated 13.2.2012 asked the learned Standing Counsel for the State Shri Mike Prakash Desai to produce the original record before this Court within a period of two weeks. For the reasons best known to the State Authorities neither the record has been produced before us, nor any application has been filed to extend the time to produce the same. In fact, this Court has been deprived of seeing the original record and to examine the grievance of the appellant. We express our grave concern and shock the way the State Authorities has treated the highest court of the land. In such a fact-situation, the court has no option except to draw the adverse inference against the State. 50. In view of the above, the appeal succeeds and is allowed. The judgment and order of the High Court dated 18.6.2009 as well as the order passed by the Hon ble Chief Minister dated 21.3.2009 are hereby set aside. This Court while entertaining the petition had granted interim protection to the appellant vide order dated 17.7.2009, which was extended till further orders vide order dated 13.8.2009 and, thus, the orders impugned remained inoperative. Thus, it will be deemed as no order h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
